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D ock e t 98-7057

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. e du/thir dc ir c uit_1998/255Filed October 29, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-7057

UNITED STATES OF AMERICA,

v.

KENNETH C. BROWN,

Appellant.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 97-CR-00144)

ARGUED AUGUST 4, 1998

BEFORE: Nygaard, Alito, and Rendell, Circuit Judges

.

(Filed October 29, 1998)

Daniel I. Siegal
Office of the Federal Public Defender
Suite 306
100 Chestnut Street Harrisburg, PA 17101

Attorney for AppellantTheodore B. Smith, III

Office of the U.S. Attorney Federal Building

228 Walnut Street

PO Box 11754 Harrisburg, PA 17108

Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Kenneth Brown appeals the district court's denial o f his motion to suppress evidence discovered during a sto p and frisk conducted by York City, Pennsylvania police o fficers. Brown claims that the stop and subsequent "pat-down " were not based on facts sufficient to support a war rantless stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 186 8 (1968). We have jurisdiction under 28 U.S.C. S 1291. We rev iew the factual findings of the district court for clear er ror. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996) (citing Ornelas v. United States, 517 U.S. 690, 699 -700, 116 S. Ct. 1657, 1662-63 (1996)). We review the distric t court's
conclusion that there was reason to conduct the Ter ry stop
de novo. See id. We will affirm.

I.

At approximately 1:30 a.m. on January 24, 1996, Yor k City police officers received a radio call of "shot s fired" in the 700 block of West King Street--an area known as a "very high crime area." Shortly thereafter, a secon d radio transmission reported that two victims of the shoot ing had been taken away by a private vehicle. Officer Micha el Koltunovich, a uniformed police officer in a marked police vehicle, immediately responded. As he approached th e area, he saw five African American men walking in the vic inity of the reported crime scene along West Princess Street . Except for these five men, the streets were deserted. Kolt unovich stopped his vehicle and asked the men to "hold up." Two men stopped, were frisked for weapons, questioned a nd

2released. The other three men continued walking.

Koltunovich radioed a description of the three men and stated that one (Brown) wore a black leather jacket and bright white knit cap.

Uniformed Officer Todd Ross was also on patrol that night in a marked police vehicle. As Ross responded to the "shots fired" call, he heard Koltunovich radio that three potential suspects were walking east along West Pri ncess Street. Within seconds after receiving the radio transmission, Ross saw Brown on West Princess Stree t near the crime scene wearing a black leather jacket and bright white knit cap. When Ross stopped his vehicl e, Brown turned and ran into an alley. Ross radioed th is
information. Koltunovich then radioed that he saw B rown enter Gus's Bar. Ross entered the bar and saw a whi te knit cap next to a man wearing a black leather jacket. T he man stated that the cap was his and that he had a weapo n. Koltunovich entered the bar and identified Brown as the person who had walked away from him earlier that ni ght. The police officers frisked Brown and found an unlo aded,
sawed-off .22 caliber rifle. Brown was arrested and taken to the police station where they conducted a thorough search and found drugs, money and ammunition. A grand jury indicted Brown for one count of possession of afire arm by a convicted felon in violation of 18 U.S.C. S 922(g )(1) and one count of possession of an unregistered sawed-of f rifle in violation of 26 U.S.C. S 5861(d). Brown was not cha rged with the shootings.

Brown moved to suppress: (1) his statement admittin g possession of the firearm; (2) the firearm; (3) the ammunition; and (4) the drugs. Brown claims that th e officers lacked the reasonable suspicion required t o conduct a warrantless stop and frisk. Brown argues that the only basis for the stop and frisk was that he fled from police and that this, without more, is insufficient to justify a Terry stop. The district court found that reasonable susp icion supported the Terry stop and denied the motion to suppress. Brown now appeals that order.

II.

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1 880 (1968), the Supreme Court held that a police office r may

3conduct a warrantless stop and frisk if specific an d

articulable facts, together with all rational infer ences, suggest that the suspect was involved in criminal a ctivity. This investigatory stop is short of an arrest and c an be justified by "less than the probable cause necessar y for an arrest." Roberson, 90 F.3d at 77. However, a mere " hunch" or "inchoate and unparticularized suspicion" cannot justify a stop and frisk under Terry. See Terry, 392 U.S. a t 27, 88 S. Ct. at 1883. Deference, however, is given to the officer's conclusions based on the officer's experience. See United States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)). An officer cannot conduct a Terry stop simply because criminal activity is afoot. See Terry, 392 U.S. at 29, 88 S. Ct. at 1884. Instead, the officer must have a particularized and objective basis for believing th at the particular person is suspected of criminal activity . See United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).

Brown contends that his flight from police is insuf ficient to support a Terry stop and frisk. We disagree.* We have held that flight combined with other factors may su pport a warrantless stop and frisk. See United States ex re l. Richardson v. Rundle, 461 F.2d 860, 863-64 (3d Cir. 1972). These other factors, apropos to Brown's stop includ e: (1) the reputation of an area for criminal activity, se e Rickus, 737 F.2d at 365; (2) a suspect's flight upon seeing his companion questioned and frisked by officers, see U nited States v. Embry, 546 F.2d 552, 555 (3d Cir. 1976); and (3)

___________________________________________________ ______________

* Brown relies on LaFave, Search and Seizure, S 3.6 (e) (3d Ed. 1997) (citing United States v. Margeson, 259 F. Supp. 256 , 265 (E.D. Pa. 1966)) (stating that "[t]he flight of a person from the pr esence of police is not standing alone sufficient to establish probable cau se"), and United States v. Young, 598 F.2d 296, 304 (D.C. Cir. 1979) (Robin son, J., concurring) (commenting that "association with a supposed crimi nal does not necessarily blossom into probable cause, simply bec ause of subsequent flight from oncoming police"), for the proposition that flight, alone, cannot justify a Terry stop and frisk. These author ities, however, discuss flight in the context of establishing probable caus e for an arrest. Additionally, United States v. Duffy, 796 F. Supp. 1252, 1258 (D. Minn. 1992), which does hold that flight from police offi cers, without more, is insufficient to support a Terry pat-down, is not bi nding on us.

4a suspect's attempts to elude police officers, see Rundle,

461 F.2d at 864 (citing Sibron v. New York, 392 U.S . 40, 66, 88 S. Ct. 1889, 1904 (1966)).

In Rundle, we noted that

"deliberately furtive actions and flight at the approach of strangers or law officers are strong indi cia of mens rea, and when coupled with specific knowledg e on the part of the officer relating the suspect to evidence of crime, they are proper factors to be conside red in the
decision to make an arrest."

461 F.2d at 864 (quoting Sibron, 392 U.S. at 66, 88 S. Ct. at 1904). Rundle involved police officers on routin e patrol in a high crime area who witnessed four youths running from a drug store around closing time. See id. at 862-64 . The officers also knew that robberies generally occurre d when stores opened or closed. See id. at 863. Therefore, based on their observances and experience, they concluded th at "a crime was either being perpetrated or about to be perpetrated." Id. We held that the officers could h ave reasonably suspected that the youths committed a ro bbery
and that the evidence obtained was admissible. See id. at
864.

This stop and frisk is similar. Koltunovich noticed five men walking in the vicinity of a reported crime sce ne. It was the middle of the night in the dead of winter a nd the
streets were otherwise deserted. When Koltunovich approached, three men disregarded the officer's req uest to "hold up" and continued walking. Koltunovich then r adioed a description of the men over the radio, stating th at one man wore a black leather jacket and a bright white knit cap. Ross heard the broadcast and immediately saw a man fitting the description in the vicinity. When Ross began to approach, Brown ran away and attempted to elude him by ducking into an alleyway and a bar. These actions
combined with the radioed information and surroundi ng circumstances are sufficient to justify an investig atory stop under Terry.

Further, Officer Koltunovich did not make his origi nal assessment of the suspects based solely on the fact that the men were coming from the area of the reported shoot ing.

5The record indicates that the area was known as a " very

high crime" area. The men were in close proximity t o the
crime scene a few minutes after the call of "shots fired" was received. It was late at night and these men were t he only persons in the area. These factors, when considered in combination with the officers' experience, are also sufficient to warrant in investigative stop under Terry. See R ickus,
737 F.2d at 365.

III.

Several specific and articulable factors contribute d to the officers' decision that Brown could be a suspect in the West King Street shooting. Therefore, the evidence obtai ned during the Terry stop and frisk and subsequent poli ce station search is admissible. Accordingly, we will affirm the district court's denial of Brown's motion to suppre ss.

6RENDELL, Circuit Judge, dissenting:

I must respectfully dissent because the majority op inion approves a stop-and-frisk of Mr. Brown based on "no thing more substantial than inarticulate hunches" as pros cribed by Terry v. Ohio, 392 U.S. 1, 22 (1968). Mr. Brown was merely near the wrong place at the wrong time. The evidence established that, at 1:30 a.m., the defend ant and four other males were spotted walking south on Belv edere and turned onto Princess Street, "one block over" f rom the area of 700 West King Street, where the shootings w ere reported to have occurred.* There was no evidence t o connect these men to the crime other than their hav ing been the only ones seen by the police on the street in the general vicinity. The record contained no evidence as to when the shootings had occurred, how much time had elapsed between the shootings and the sighting of t he five black males, and no evidence that the perpetrators were black, male, or that they were on foot. In fact, al l the police
knew was that "shots had been fired in the 700 bloc k of West King Street," and "two victims of the shooting had been taken by a private vehicle to City Hall." For all the police knew at the time, the incident could have be en a shootout with no perpetrators other than those inju red.

Further, Brown did not flee when two of his compani ons were questioned; rather, two stopped, and the other three, including Brown, kept walking. He ran only later, w hen a police car kept pursuing him. While the majority op inion sidesteps the issue, flight alone, under these circumstances, should not provide probable cause fo r a Terry stop, because flight can be the result of leg itimate concerns on the part of the person being pursued, a nd, on its own, does not indicate that criminal activity i s afoot. See, e.g., United States v. Young, 598 F.2d 296, 30 4 (D.C. Cir. 1979) (Robinson, J., concurring); United State s v.

___________________________________________________ ______________

* Interestingly, a street map of York City shows th e relevant portion of West King Street to be separated from Princess Stre et by several streets -- Light Alley, West Poplar Street, and School Plac e. See Mapquest, http://city.net/cgi/maps>. The record, however, con tains only the officer's statement as to the geographic layout of the area. Appendix, p. 63.

7Duffy, 796 F. Supp. 1252, 1258-59 (D. Minn. 1992); United

States v. Margeson, 259 F. Supp. 256, 264 (E.D. Pa. 1966). While flight with more can justify a Terry stop, he re there is nothing more.

Law enforcement officers made Brown a suspect merel y by virtue of reporting the color of his hat and coa t. The instant situation is clearly distinguishable from b oth United States v. Embry and United States ex rel. Richardso n v. Rundle, on which the majority rely. In those cases there were facts which, when taken together with reasonab le inferences drawn from those facts, justified an int rusion. Here, not only are there no facts that connect Brow n with criminal activity, but, moreover, there are no infe rences which can reasonably be drawn from facts of record which could do so. As Judge Seitz cautioned in his dissen t from the majority opinion in United States v. Embry:

Terry and its progeny do not license the pol ice to stop individuals in public places on a bare suspi cion or an intuition that they may be criminals, and it certainly does not permit random stops in an effort to turn something up. In every case, "the police off icer must be able to point to specific and articulable fa cts which, taken together with reasonable inferences fr om those facts, reasonably warrant the intrusion."

546 F.2d 552, 558-59, citing Terry, 392 U.S. at 21.

Here, there are no such facts. We take a giant step backward in our Fourth Amendment jurisprudence in giving our stamp of approval to the police conduct in this

case.

I would reverse.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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